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Court of AppealDismissedCriminal Appeal No. 107 of 2001

ALI BIN ALI & SHEE OBO MOHAMED vs REPUBLIC [2001] KECA 333 (KLR)

Court of Appeal of Kenya
28 September 2001
1,322 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that ship captains who deliberately ignore obvious red flags legally 'know' about drugs on board — ignorance is no defence.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Mombasa (delivered at Nairobi) by Ali bin Ali and Shee Obo Mohamed, the captains of the dhows HAIFA and AL HUSNA, against convictions for trafficking in 984 bags of hashish (19,633 slabs weighing about 19,633 kg) contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. They had been jointly tried with thirteen others before the Chief Magistrate's Court at Mombasa; eight crew members who appealed had their convictions quashed on first appeal by the High Court (Hayanga J), but the first appellate judge upheld the captains' convictions on the basis that, unlike the crew, they 'deliberately shut their eyes to the facts of the situation' and were possessed of actual knowledge. The Court of Appeal fully agreed. It catalogued the suspicious circumstances the captains ignored: the night undertaking, the Shs.150,000 payment, the illegal high-seas transfer of unauthorised 'luggage' between Pemba and the Kenya coast, the off-course journey, unauthorised passengers, and the first appellant's stated intent to assist evasion of duty. The court held that deliberate shutting of the eyes to the facts was, in the eyes of the law, actual knowledge. It further held that lack of knowledge, the only defence pressed, had to be proved by the accused under section 68 of the Act, and the appellants had not discharged that burden. On sentence, the court reiterated that on a second appeal no appeal lies except where the sentence is illegal; the sentences of 25 and 20 years with fines of Shs.500,000 were heavy but lawful. Both appeals were dismissed in their entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the two vessel captains had knowledge that the substance conveyed was hashish, given that the crew's lack of knowledge had been accepted on first appeal
  2. 2.Whether deliberately shutting one's eyes to the facts of a situation (wilful blindness) amounts in law to actual knowledge for purposes of trafficking under section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act
  3. 3.On whom the burden of proof of the defence of lack of knowledge lies under section 68 of the Act
  4. 4.Whether the sentences imposed were illegal or otherwise open to challenge on second appeal

Key legal issues

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01

Whether wilful blindness amounts to actual knowledge of the narcotic for the offence of trafficking

Holding

Yes. The two captains, unlike their crew, deliberately shut their eyes to the circumstances of the voyage - the night undertaking, the huge payment, the high-seas transfer, the off-course journey and the unauthorised merchandise - and that deliberate blindness is treated in law as actual knowledge.

Reasoning

The court adopted the first appellate judge's finding that the crew had no knowledge but the captains 'deliberately shut their eyes to the facts of the situation'. It catalogued the suspicious circumstances the captains ignored, including the Shs.150,000 payment, the illegal high-seas transfer between Pemba and Kenya, the unauthorised passengers and the intent to evade duty. The first appellant had conceded in his statement that he discovered the cargo was bhang when loading. The court held that such deliberate shutting of the eyes was, in the eyes of the law, actual knowledge, making the convictions safe.

p. 4
02

Burden of proof of the defence of lack of knowledge

Holding

The burden of proving lack of knowledge as a defence lies on the accused, by virtue of section 68 of the Act, and the appellants discharged no such burden.

Reasoning

Lack of knowledge was the only defence pressed on appeal. Section 68 provides that the prosecution need not negative any licence, authority, exception or defence; the burden of proving such matter rests on the person seeking to avail himself of it. The court found nothing to show the appellants discharged that burden; on the contrary, a careful scrutiny of the evidence as a whole satisfied it that they had actual knowledge in the eyes of the law.

p. 4
03

Whether the sentences could be disturbed on second appeal

Holding

No. On a second appeal no appeal lies against sentence unless the sentence is illegal; the sentences of 25 and 20 years with fines of Shs.500,000 were heavy but within the prescribed limits and not illegal.

Reasoning

The court reiterated the settled limitation on second appeals: sentence may only be challenged if illegal. The first appellant was sentenced to 25 years' jail with a fine of Shs.500,000 and the second to 20 years with a fine of Shs.500,000. Although heavy, both were within the prescribed statutory limits, so the court found nothing illegal and dismissed the appeals against sentence.

p. 4

Legal principles established

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  • Deliberately shutting one's eyes to the facts of a situation (wilful blindness) constitutes actual knowledge in the eyes of the law for the offence of trafficking in a narcotic drug.
  • Under section 68 of the Narcotic Drugs and Psychotropic Substances (Control) Act, the burden of proving the defence of lack of knowledge (or any other exception or defence) rests on the accused person seeking to avail himself of it; the prosecution need not negative it.
  • On a second appeal to the Court of Appeal, no appeal lies against sentence except where the sentence is illegal.

Court orders

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  1. 1.The appellants' appeals against conviction are dismissed and their convictions upheld
  2. 2.The appeals against sentence are also dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 48 to 57 of 1997
Jurisdiction invoked
Second appeal to the Court of Appeal under the criminal appellate framework; on sentence, 'on a second appeal, no appeal lies except if the sentence is illegal'

Relief refused

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Quashing of convictions on the basis of lack of knowledge of the narcotic

The court found the captains deliberately shut their eyes to the facts, which in law is actual knowledge, and they did not discharge the burden of proving the defence

p. 4

Interference with sentence

On a second appeal no appeal lies against sentence unless it is illegal; the sentences, though heavy, were within the prescribed limits

p. 4

Costs

No costs order made in this criminal appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having regard to all the evidence on record and all the circumstances of the case, we are satisfied that the appellants deliberately shut their eyes to the facts of the situation. In the eyes of the law this was actual knowledge.
p. 4Wilful blindness equated to actual knowledge
Lack of knowledge can be a defence and indeed it was the only one pressed upon us. But the burden of proof of this defence is upon the person seeking to avail himself thereof, i.e. the appellants in this case.
p. 4Burden of proving the defence of lack of knowledge
As for sentence, on a second appeal, no appeal lies except if the sentence is illegal.
p. 4Limits of second appeal on sentence
Accordingly, we dismiss their appeals and uphold the convictions of the appellants.
p. 4Final orders - dismissal of appeals and upholding of convictions
against sentence are also dismissed.
p. 4Final orders - dismissal of appeals against sentence

Issues in the judgment

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minor

The judgment text ends mid-sentence in the disposition ('we find nothing illegal. against sentence are also dismissed.'), apparently omitting words between the conviction and sentence rulings.

minor

The second appellant is described inconsistently as 'Original Accused No. 7' in the narrative and 'Original Accused No. 27' in the later passage.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ALI BIN ALI & SHEE OBO MOHAMED vs REPUBLIC [2001] KECA 333 (KLR)", Case Analysis (2001). Criminal Appeal No. 107 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/333/eng@2001-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.